State v. Webb

• Court: Louisiana Supreme Court
• Writing for the Court: BLANCHE; LEMMON; MARCUS; MARCUS
• Citation: State v. Webb, 424 So.2d 233 (La. 1982)
• Decision Date: 29 November 1982
• Docket Number: No. 82-KA-0392,82-KA-0392
• Parties: STATE of Louisiana v. David WEBB and Earl Davis, Jr.

Page 233

424 So.2d 233

STATE of Louisiana v. David WEBB and Earl Davis, Jr.

No. 82-KA-0392.

Supreme Court of Louisiana.

Nov. 29, 1982.

Rehearing Denied Jan. 21, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., John H. Craft, Richard Thomas, Asst. Dist. Atty., for plaintiff-appellee.

Clyde D. Merritt, Dwight Doskey, Orleans Indigent Defender Program, Roy V. Ladner, Jacob Kansas, New Orleans, for defendant-appellant.

BLANCHE, Justice.

Defendants David Webb and Earl Davis, Jr. were convicted of first degree murder for the killing of Ronald Eledge, a violation of LSA-R.S. 14:30. The following day, the jury of twelve recommended that the defendants be sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The defendants were then sentenced in accordance with the jury's recommendation. Defendant Webb appeals his conviction and sentence, urging one assignment of error. Defendant Davis also appeals his conviction and sentence, urging twenty-one of the thirty-four assignments of error he filed below. Because we find Webb's sole assignment of error and Davis' assignment of error No. 2 sufficient to warrant reversal of these convictions, we do not discuss all twenty-one assignments urged.

FACTS

On March 18, 1979, John Furtado, Victor Lee, and Ronald Eledge, three transsexuals, were in their French Quarter apartment in New Orleans, Louisiana. As Furtado left the apartment and started out of the complex, he was approached by the two defendants. Webb pointed a gun at Furtado and ordered him to surrender his key. Apparently, Furtado and Webb had met at an earlier date, but Furtado testified that he had never seen Davis before that moment. At gunpoint, Furtado re-entered the apartment. Webb demanded money and drugs from the three, and Lee and Furtado were ordered to disrobe. Webb then tied the hands and feet of the three and gave Davis a knife, instructing him to watch the victims while he searched the apartment for money. There was conflicting testimony from Lee, one of the victims, that Davis had locked the door to the apartment and tied up the three. Lee also claimed that Davis had threatened him with the knife.

Lee attempted to persuade Webb to allow him to call someone to obtain money, but Webb told him to shut up and stabbed him with the knife. Webb continued searching the apartment and ingested some drugs which he found there. Angered that the drugs did not make him high, Webb began strangling Eledge. When Eledge tried to speak, Webb stabbed him repeatedly in the back. He then rose and went to the sink to wash the blood off of his knife. When he returned, Webb noticed that Eledge was still alive. He turned Eledge over onto his back and said, "I'm getting paid for this one," as he plunged the knife into Eledge's neck and chest. When Eledge still refused to expire, Webb told him, "You're a hard one to die." Webb then slit Eledge's throat and stomped on his face with the heel of his shoe. In the meantime, Davis gathered items into a suitcase in preparation for his exit with Webb.

Webb interrogated Furtado concerning names and addresses where he could obtain drugs and stabbed him in the back when he could get no response. Furtado then volunteered some names and addresses. As the defendants prepared to leave, Webb struck Lee and Furtado repeatedly on the head with a heavy champagne bottle, fracturing Furtado's skull and rendering him unconscious. Lee feigned death. After the departure of Webb and Davis, Lee managed to escape through an apartment window and summon help. Furtado and Lee were hospitalized and eventually recovered. Eledge was declared by the medical examiner to have died from multiple stab wounds to the chest and neck.

Approximately four days later, Webb was arrested while hitchhiking near Poydras, Louisiana on suspicion of another murder. Webb confessed to the Eledge killing and showed police where he buried the murder weapon. Davis was arrested a few days later. At trial, Davis' defense was based on his alleged lack of specific intent. Davis claimed to have been afraid of Webb because he was only fifteen years old at the time and Webb was twenty-five, that he did not know what Webb planned to do in the apartment, and that Webb had threatened to harm him and his family if he did not accompany him. Davis also asserted that the inculpatory statement given to the police by Webb exonerated him because in it Webb had expressly told the police that Davis had nothing to do with the killings. Webb's inculpatory statement was not introduced into evidence by the state at trial.

On September 18, 1979, the day of the trial, Webb moved to sever the trials. He was joined in the motion by Davis. In his written motion, Webb urged that the contents of Davis' opening statement would be severely prejudicial to his defense, and that Davis would attempt to bring out his confession, further prejudicing his case. This motion was denied sometime before the trial began. The record does not reflect what evidence was adduced by Webb to establish his allegations of prejudice, nor does it reflect exactly when the motion was denied. ¹

In his opening statement, Davis asserted that he had participated in the crime because he was terrified of Webb, that he knew of other crimes committed by him, and that Webb had confessed to the Eledge murder. Webb again moved for a severance and a mistrial because of the prejudicial nature of the statement. At this point, Davis also re-urged his motion for a severance. All motions were denied. After Davis unsuccessfully attempted to cross-examine a police detective as to the content of Webb's confession, the trial judge offered Davis' counsel a severance, but that offer was rejected with a remark by counsel that he was ready for trial. At that point, Webb again moved for a severance, but the motion was denied. ASSIGNMENTS OF ERROR NOS. 5, 33 (Webb's assignment No. 1)

By these assignments of error Webb and Davis contend that the trial court erred in failing to grant their motions for severance, and Webb also contends that the trial court erred in failing to grant their motions for severance, and Webb also contends that the trial court erred in failing to grant his motions for mistrial during the state's case in chief. Because we find Webb's conviction reversible on the issue of severance, we do not address his assignment insofar as it concerns the trial court's failure to grant a mistrial.

On May 16, 1979, some four months before trial, defendant Davis filed a motion for severance, alleging that the two defendants had antagonistic defenses. In the motion, Davis noted that the state was in possession of a confession by Webb, but that he would not have the right to cross-examine Webb as to the content of the statement. After a hearing on May 21, 1979, the motion to sever was denied. At the hearing, Davis testified that Webb had forced him to participate in the crime by threatening him and his family. In our opinion, a severance should have been granted on this motion, but the right to appeal its denial inures only to Webb. We are of the opinion that Davis waived his right to appeal the denial of this motion by refusing the severance offered to him later in the trial. ²

An objection made when more than one defendant is on trial, even a written pre-trial motion for a severance, is presumed to have been made on behalf of all defendants unless the contrary appears true. La.C.Cr.P. art. 842; State v. Lavigne, 412 So.2d 993 (La.1982); State v. Bergeron, 371 So.2d 1309 (La.1979). Although Webb did not join in this motion to sever, the presumption relieves him of the necessity of making an affirmative showing that it was made on his behalf. State v. Henderson, 296 So.2d 805 (La.1974). Therefore, because there has been no showing by the State to the contrary, Davis' pre-trial motion shall be presumed to have been made on behalf of both Webb and Davis.

Jointly indicted defendants are to be tried jointly unless the court is satisfied that justice requires a severance. La.C.Cr.P. art. 704; State v. Tennant, 352 So.2d 629 (La.1977), cert. den., 435 U.S. 945, 98 S.Ct. 1529, 55 L.Ed.2d 543 (1977). The accused is not entitled to a severance as a matter of right, but the decision is one resting in the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. State v. Gaskin, 412 So.2d 1007 (La.1982); State v. Manuel, 408 So.2d 1235 (La.1982); State v. McGraw, 366 So.2d 1278 (La.1978). It is an abuse of discretion not to grant a motion for severance when the trial judge has been made aware that a defendant intends to lay blame for the offense at the feet of a co-defendant. State v. Williams, 416 So.2d 914 (La.1982); State v. Lavigne, supra. Note, however, that antagonistic defenses do not represent the only instances where denial of a motion to sever will constitute an abuse of discretion. Where the ends of justice will best be served by a severance, it should be granted. See La.C.Cr.P. art. 704, comments (c), (d); cf. State v. Barkley, 412 So.2d 1380 (La.1982); Wright, Federal Practice & Procedure, Criminal, § 225 (1982); West's Federal Practice Manual, § 6754 (1970).

In the present case, the trial judge, at the hearing on Davis' motion to sever, was presented with evidence that Davis was going to lay blame for the offense at the feet of Webb. On direct examination, the following colloquy occurred:

* * *

* * * "Q: [D]id Mr. David Webb force you to participate in the series of events against your will?

A: Yes, sir. In a way he did.

Q: How did he force you to participate in these incidents?

A: Well, you see--you know, he pulled the gun on the guy, you know .... I did what he told me to.

Q: Did he threaten you? Did he tell you he was going to kill you or members of your family if you didn't help?

A: He said if I said...